Another Lawsuit Questions Who Owns The Copyright On Legal Filings

from the fun-with-copyright dept

Last summer, we wrote about a lawsuit in the US where a lawyer was suing LexisNexis and Westlaw for their services offering access to legal filings. At issue was who owned the copyright on those legal filings. Historically, that issue has rarely come up, because there's little commercial interest in the filings by themselves. However, some lawyers are apparently getting upset about other companies collecting and selling access to their filings... even though the reality of the situation is that those aggregators aren't selling the filings, so much as the aggregation of all the filings. No one is ever going to go to a lawyer and offer to pay for a copy of a particular filing. However, it appears similar legal questions are being asked north of the border as well. Michael Geist points us to the news of a class action lawsuit being filed against Thomson Reuters for its service that aggregates legal filings for other lawyers.

While I can understand that, technically, legal filings are most likely covered by copyright, I think there should be a clear exemption there. The entire purpose of copyright law is supposed to be to create incentives to create works and share them. But, in the case of legal filings, clearly copyright is not needed as an incentive for either creating the works or for sharing them. It seems preposterous to think that such documents should get copyright protection. Really, this is yet another of the ridiculous consequences of copyright law changes that made any type of work automatically covered by copyright. If there was a system that required registration of copyrights, I doubt many lawyers would be copyrighting their legal filings.

"However, some lawyers are apparently getting upset about other companies collecting and selling access to their filings... even though the reality of the situation is that those aggregators aren't selling the filings, so much as the aggregation of all the filings." - so what you are saying is that you can sell a building full of copyright violating materal (such as hard drives full of downloaded movies), provided you own the building that it's in? nice!

Re:

Public Record

Legal filings are part of the record of court proceedings, and as such should be in the public domain as part of the public record.

If someone wants to make a compilation of matters of public record and charge a fee for access to that compilation, there should be no impediment to that, but the records themselves, as with all public documents, should not be subject to any restriction other than those normally required of public documents, i.e., reasonably copying fees, which in the internet age should approach zero.

Copyrights in Court Filings

Copying court filings for purposes of further dissemination for legal research, education or criticism would all fall under the fair use doctrine. So would putting a copy of a court pleading in a book as an appendix to show what occurred in a trial. Court filings generally purport to be compilations of fact: allegations of what happened or statements of what the law is. Facts are not protected by copyright. Official publications of the US government (which lawyers cite in favor of arguments in briefs) are all public domain. In his Little Book of Plagiarism Judge Posner discusses how judges and lawyers take the writings of others for their decisions and briefs without giving attribution. If I wanted to put a book together called "best court filings of 2009" and attributing sources properly, I would not feel impelled to pay a license fee. Nor would any lawyer have the slightest hesitation about stealing whole chunks of someone else's brief without citing it as a source, if, after checking, it fit. Legal citation rules are different from those of academics. Court filings may contain copyrightable material (ie a whole copy of Catcher in the Rye or an entire photograph). But the lawyer's contribution, if copyrightable at all, is a very very thin copyright and subject to so many fair uses that almost none give rise to an expectation of income on resales.

Fair Use/Research?

People copying and making money off the structure of my "documents" has never struck me as problematic except in one specific cirsumstance, and that is when I draft a complex licensing arrangement between parties where the agreement is deemed confidential...and yet one of these online sellers is somehow able to finagle a copy of the document and post it in its entirety (party names, monetary provisions, etc.) for sale.

This strikes me as wrong for two reasons. First, confidentiality should be sacrosanct unless both parties agree to waive it. Second, most of the licenses I have prepared are crafted specifically to fit the fact situation at hand, and there are in most instances underlying facts that determine what is and what is not appropriater why certain clauses are drafted and the reason they are drafted in a particular manner.

Would I ever sue? Of course not. That is the prerogative of the parties. It does irritate me, however, at the though that a so-called professional "colleague" would copy such a document so slavishly that the resulting document may represent a clear case of "malpractice". Clients deserve professional representation from a competent lawyer, and practices such as these remove competency from what clients have every right to expect.

Re:

Reading comprehension - 1 out of 10 again.
However, you analogy holds if the building is full of maps showing where the copyrighted material is held (that's what an 'aggregator' is - please file this for future reference).
And I believe that would be perfectly legal and non-infringing...

I think copyright protection for legal pleadings is perfectly appropriate.

If attorney A spends 30 hours drafting an original brief, and attorney B can offer similar competing services for 1/3 the price by simply copying attorney A's brief and adapting it to the facts of his case, then there is significantly less incentive to draft original briefs (as opposed to simply lifting others' briefs to the maximum extent possible).

I wonder

If this is proven then would not the client be also entitled to a percentage of the profit. I think it would turn some attorneys to drafting proceedings so that they could be profitable secondary to what might be for the good of the client. This could be a real possibility in that an attorney may be able to $500 an hour for their work and then being able to profit on what has already been paid. If there is a profit motive outside of the client then it is likely the motivation would not be just the client but the broader market.

It is a slippery slope, we are not talking about music or movies here. Most people sometime in their live need legal professionals and they should not be represented based on broader market.

Re: I wonder

Unless the client and attorney have some unusual agreement with specific copyright-related terms, the client would not be entitled to any ownership/profit from the legal doc.

While there is a possibility that some attorney might see some potential profit from a legal doc drafted for a client that would come from another source, the likelihood is slim in almost all cases, and in almost all cases would be far outweighed by the real, immediate interest in pleasing and doing a good job for the client.

Might not CopyLeft give protection for lawyers who want it?

I've filed my fair share of briefs, and other lawyers have often used them either to aid their own research or even as copy/paste for their own briefs. I have no problem with that, but the bias in the current copyright system is that no one knows I have no problem with that. The legal presumption is that I am a copyright maximalist. Perhaps I should be adding a Creative Commons type of license to my briefs which would allow such uses, but with a proviso that prohibits services such as LEXIS or WestLaw from charging for them (or if they do, requires them to pay me a fee for permission).